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(photo by Jabin Botsford/The Washington Post via Getty Images)
Donald Trump’s lawyers have given up.
Not everywhere, and not across the board, of course. There’s always the Southern District of Florida, where Judge Aileen Cannon has rolled out the welcome mat! But in DC and New York, Trump’s legal team has clearly concluded that they’re not going to get what they want from the trial court, so they don’t have to bother making any serious legal arguments.
That does not mean that they plan to shut up, however, as last week’s histrionics over New York Supreme Court Justice Arthur Engoron’s order to stop doxxing his law clerk attest. Similarly in DC, attorneys John Lauro and Todd Blanche are firing off motion after motion, each one more batshit than the last.
Consider this amazing exercise in tautology from that election interference case:
The presumption of regularity that the Special Counsel seeks to hide behind is entitled to no weight under these circumstances. The presumption arises in ordinary cases because prosecutors “are designated by statute as the President’s delegates to help him discharge his constitutional responsibility” under the Take Care Clause, i.e., every president’s constitutional obligation to “take Care that the Laws be faithfully executed.” United States v. Armstrong, 517 U.S. 456, 464 (1996); U.S. Const., Art. II, § 3. In this case, President Biden has driven a prosecution that is wholly inconsistent with that Clause and is instead motivated by a constitutionally prohibited desire to pursue election interference by punishing President Trump for his protected speech, his decision to run for office, and his status as the leading candidate in the 2024 election.
See, Trump doesn’t have to meet the legal standard for vindictive prosecution, because this is a vindictive prosecution. It all makes perfect sense!
This jiujitsu logic comes from Trump’s reply in support of his motion to dismiss the DC case for selective and vindictive prosecution. Never before has a president been prosecuted for crimes, he argues. Ipso facto propter hoc, selective prosecution! Trump conveniently ignores the hundreds of other January 6 plaintiffs who have been prosecuted, many under the same obstruction and conspiracy statutes he’s charged with here. None of those weirdos is president, right?
In support of his claim that the Special Counsel’s Office is a mere “stalking horse” for Biden, Trump cites to a couple of anonymously sourced articles in the Washington Post and New York Times.
In 2021, the Times reported that Biden privately expressed to aides the wish that Attorney General Merrick Garland would “act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.” But the sources specified that “Justice Department officials do not keep Mr. Biden abreast of any investigation.”
In 2023, the Post published a tick tock of the slow, circuitous route the Justice Department took toward prosecuting Trump, with senior leadership dragging its feet at every step.
In its opposition, the Special Counsel’s Office noted that the articles said the exact opposite of what Trump represents. In fact, they confirm that Biden has never given instruction to the Justice Department about this case.
But Trump’s crackerjack lawyers have an answer for that one:
The Biden administration intentionally leaked these comments to the media in early 2022 so that President Biden could improperly provide instructions to and exert pressure on prosecutors and investigators without engaging in direct communications, as is clear from the fact that the article sourced the operative remark to “two people familiar with his comments.”
The articles themselves are the instruction! And if they’re not, why haven’t the prosecutors gone under oath to refute this inadmissible hearsay, hmmm???
If, for example, the New York Times falsely reported that President Biden told others that President Trump “should be prosecuted,” then why not give the Court and the public peace of mind through the submission of competent evidence, rather than a blustering brief that is full of venom but deflects on the core facts?
The answer is simple. The media reports are accurate.
Trump’s lawyers are similarly disingenuous about a disastrous interview that former acting US Attorney for the District of Columbia Michael Sherwin gave to CBS’s “60 Minutes” in March of 2021, after which he was almost immediately sidelined.
Here’s how Trump described it:
In March 2021, during a 60 Minutes interview in violation of DOJ policy, Sherwin declared publicly that President Trump was being targeted by DOJ and suggested that statements from “soccer moms” had “moved the needle.”
Here’s that passage from the actual transcript:
PELLEY: Has the role of former President Trump been part of your investigation?
SHERWIN: It’s unequivocal that Trump was the magnet that brought the people to D.C. on the 6th. Now the question is, is he criminally culpable for everything that happened during the siege, during the breach? What I could tell you is this, based upon, again, what we see in the public record. And what we see in public statements in court. We have plenty of people — we have soccer moms from Ohio that were arrested saying, “Well, I did this because my president said I had to take back our house.” That moves the needle towards that direction. Maybe the president is culpable for those actions. But also, you see in the public record too militia members saying, “You know what? We did this because Trump just talks a big game. He’s just all talk. We did what he wouldn’t do.”
Trump’s lawyers even have the nerve to argue appointing Special Counsel Jack Smith in November of 2022 after Trump declared his candidacy was an act of nefarious retaliation, rather than the appropriate step to wall off the investigation of a presidential rival from the rest of the executive branch.
“Within days of President Trump’s announcement, the Attorney General appointed the Special Counsel,” they intone ominously.
The entire document is gobbledygook, stacked atop innuendo, then slathered in a rancid gravy of bullshit. It barely gestures in the direction of the legal standards for vindictive and selective prosecution, which are more or less insuperable because American courts are really not in the business of making it easy for defendants to interrogate the motives of prosecutors.
These motions are the product of lawyers who have given up on presenting cognizable legal arguments in favor of screaming nonsense and blanketing the docket with garbage. And who knows, maybe they’ll be able to toss enough banana peels to slip up prosecutors and delay this trial until after the election.
But in the meanwhile, the whole thing stinks.
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.
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